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Adrian Corbould: How to prove you’re a duck or not a duck in a family provision claim. Hello, I’m Adrian Corbould, Accredited Specialist in Wills & Estates at Turnbull Hill with the Battle of Wills series where I talk about contested wills and estates, generally.

We’ve talked about being eligible to make a family provision claim. I would say the top three eligibility criteria are married people at date of death, de facto spouses at date of death, and children. How do you prove that you’re one of those categories? If you’re married, that’s not very hard, there’d be a marriage certificate evidencing the date you got married. The births, deaths, and marriages would have a record that you were married. Very easy to prove, very hard to get out of.

If you’re a child, we’ve talked about presumption of parentage. Won’t go into that, we’ll go into the second one, which is de facto spouse as at date of death. Now I started off talking about how to prove you’re a duck. We have heard that expression; if it’s got feathers, if it’s got webbed feet, if it’s got a beak, if it flies south for the winter but quacks, there’s a very good chance that it’s a duck. How does that apply in family provision claims?

Under the Interpretation Act, there lists nine considerations that assist the court in working out if someone is in a de facto relationship or is not in a de facto relationship. I’ll go through them.

Not all of these criteria must be proven. They are just general considerations. The first one is the duration of the relationship. How long have that couple been together? Or can prove how long they’ve been together, whether that’s by being on a lease, they’ve got witnesses who can attest how long they lived together. There’s no minimum requirement to make a family provision claim, but certainly the longer that can be proven, the better.

The second one is the nature and extent of a common residence. That’s living together in one place. Again, this is not conclusive of itself that someone is in a de facto relationship. You do not have to have a common residence if you can meet the other criteria but certainly if you do, it goes towards proving it.

Third one, whether a sexual relationship exists. That goes all on the balance to help prove or disprove.

The fourth one, the degree of financial dependence or interdependence between the couple, whether one was dependent on the other, and can they prove it. Can they prove that they bought groceries, funded utilities, paid for accommodation, things like that.

The fifth one, the ownership, use, and acquisition of property. Did they live in one property? Did they rent it together? Did they buy a property together? Things like that.

The sixth one, the degree of a mutual commitment of a shared life. Is there evidence to prove that this couple had a plan to live together in an ongoing relationship that could be evidence by family, friends, getting engaged, things to that effect.

Seventh one, the support and care of children, as applicable. If they have children together, is there support and care of those children?

Eighth one, performance of household duties. Did they perform household duties together? Did one do more than the other? What’s the evidence that they helped each other to do those duties?

Ninth and last one, the public reputation of the relationship. Are there observations by people in the public who would draw the conclusion those two people are in a relationship?

Put all of those things together, a judge can make a decision whether they believe because the judge determines fact. They look at all those factors. You don’t have to have all of them, but if they come to the conclusion that a couple was in a de facto relationship, that claimant may be deemed eligible to proceed.

Conversely, someone who may be trying to disprove that they’re in a relationship, say a competing beneficiary who might be putting on evidence to say, I need money from the estate because that’s the way the will is set out, but I don’t have the benefit of being in a de facto relationship despite there may be evidence to the contrary. They may live with someone. There may be allegations that they share accommodation.

I’ve had this matter in a very recent case where we put evidence on that the defendant was living in a de facto relationship with a person. She denied it because her aim was to show that she was a single mother, had low income, didn’t have the financial dependency from this other fellow.

Anyway, as you can see, quite a complicated area. Again, I’ve just broad bushed over it because it is so deep. Thanks again. Talk again next time.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2022 Doyles Guide. Both were also listed in the 2021, 2020, 2019 and 2018 guides.

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